The offending statement is this
There will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer.Not so, the academics point out:
This is inaccurate. Civil law and church teaching have diverged before, on at least two occasions. The first was in relation to the marriage to a deceased wife's sister, the second in relation to the remarriage of divorcees.The letter does not actually tell us why the divergence of church teaching and civil law in these two cases is thought to affect "the general understanding and definition of marriage" but points instead to a summary by one of the signatories, Scot Peterson, of the "robust discussion of this topic" in recent days and stresses that
We are all in agreement that the statement in the Bishops Guidance is mistaken and misleading.Not only that. It seems to these academics that the error "forms an important part of the case which is being made" which is why they tried to resolve this with "Mr Arora and Mr Fittall" [Revd Arun Arora, Director of Communication, and Mr William Fittall, Secretary to the House of Bishops] but these attempts "have failed."
There is growing concern amongst the academic community about the situation.Some of these academics "are anxious to improve channels of communication with the Church" in the hope that their "research and scholarship can be used constructively."
This is maybe by way of contrast to the response they received from William Fittall who had the audacity to disagree with their reading of the situation.
Bernard Randall suggests in a comment thread at TA that while the prohibition of incest can be considered part of the general definition of marriage, the question what constitutes incest is not:
the Deceased Wife’s Sister Marriage Act changed the definition of incest, to remove DWS from the forbidden list. Incest changed, not marriage.He also suggests that what allowing for a second marriage changed is not so much the definition of marriage but the definition of adultery but accepts that this may come down to a judgement call. What is noteworthy about the academics' letter is that they do not allow for the possibility of disagreement on this. They refuse point blank to allow the Bishops to distinguish between diverging understandings of marriage at the margins and at the heart of what constitutes marriage.They may have a good case for their reading but is it strong enough to silence the other side with claims of historical blunders?
In effect, the letter-writing academics argue that each divergence in law, however slight, reflects an essentially different understanding of marriage, while the House of Bishops' statement worked from the assumption that any divergence which did not require a re-writing of the definition of marriage as found in Canon B30 is not one which affects "the general understanding and definition of marriage". The use of the word "general" rather than "legal" in the guidance suggests to me at the very least that the legalistic approach of the academics is not the only defensible.
The Deceased Wife's Sister Marriage Act never came close to touching Canon B30 although it affects Canon B31. Allowing for second marriage while the partner to the first marriage is still alive left Canon Law itself unchanged. There may be an argument as to whether or not it required a re-interpretation of Canon B30. Maybe surprisingly the academics appeal to Princess Margaret for the view that the Church of England had always considered marriage indissoluble rather than to the Archbishop at the time who has written on Marriage and Divorce (see excerpts here) and seems to be closer to the view that the life-long design of marriage means that a marriage should not be broken rather than cannot be broken.
See also Frank Cranmer on the Law & Religion UK site, An error in the House of Bishops' Guidance on Same Sex Marriage? - perhaps not.
